Sri Lanka-Ceylon Colloquium Rule of Law-Conference Report-Working

WORKING PAPERS CEYLON COLLOQUIUM ON THE RULE OF LAW COLOMBO, CEYLON JANUARY 10-16, 1966 INTERNATIONAL COMMISSION OF JURISTS (CEYLON SECTION) WORKING PAPERS CEYLON COLLOQUIUM ON THE RULE OF LAW January 10 - l63 1966 International Commission of Jurists (ICJ) Geneva, Switzerland This Volume embodies the following Working Papers for use by the Committees at the Ceylon Colloquium on the Rule of Law: I. Working Paper on the Rule of Law and the Common Man by L. W. Athulathmudali (Committee 1). II. Working Paper on Nationalization of Property and the Rule of Law by C , F, Amerasinghe (Committee 2). III. Working Paper on The Ombudsman as a Reality in South-East Asia by D. S. Wijewardane (Committee 3)* IV. Proposal by the Secretary-General of the International Commission of Jurists for A World Campaign for Human Rights - containing suggestions for the Celebration of T96& as the International Year of Human Rights (Special Committee). WORKING PAPER on THE RULE OF LAW AND THE COMMON MAN L, W. Athulathmudali'* (Lecturer in Lav/, University of Ceylon) For the purpose of this Working Paper the concept of the Rule of Law will be taken to mean those definitions and explanations given to it at var ious meetings of the International Commission of Jurists now largely contained in the various pronouncements in Delhi, Lagos, Rio and Bangkok. The other concept, that of 'the Common Man', is capable of denoting a variety of things. Host commonly it is taken to mean the body of persons usually called 'the man in the street'. It is sometimes taken to mean 'the mass of the people', some times 'the under-privileged'. It may even be equated with that mythical being so often the corner-stone of legal rules- 'the reasonable man'. In this paper however, the definition suggested is one that includes all these but is wider than all of them. The term is used here to denote all non-lawyers. It will be seen at once that this includes within the fold of 'the Common Man' a variety of different people whose culture, standing in society and attitude to the law varies greatly. If our purpose is to bring about a better understanding of the Rule of Law, we must realise in the choice of method that we are appealing to a heterogenous group whose only homogenity is their lack of knowledge of the law. Naturally, therefore, the techniques vre adopt will have to be varied. This paper will be largely concerned with the methods to be employed in explaining to the common man what the Rule of Law is about and creating within him a respect for it. This effort therefore proceeds on the assumption that there is a need for creating a respect for the Rule of Law. It would perhaps be useful to sarvey how far the concept of the Rule of Law is part of the common man's thinking today. In Ceylon today, almost wholly due to the efforts of the International Commission of Jurists here and abroad, the existence of the concept is known by a good number of educated persons. The Rule of Law is often referred to as a moral standard on which all laws must be judged. It is unlikely that even among the intellectually sophisticated classes there is any understanding of the various detailed pronouncements made on the subject by the Commission, and there is no evidence to show that there is any widespread knowledge of the content of the Rule of Law as expounded by the Commission. Public inquiry and references to the Rule of Law quite often reflect an attitude which thinks of the 'Rule of Law' as another theory of ’Natural Law'. * M.A., B.C.L. (Oxon); Advocate; of Gray's Inn, Barrister-at-Law; Former Lecturer in Law, University of Malaya in Singapore. S- 1098 (a) - 2 - In taking the Rule of La,w to the common man, it will perhaps be necessary to pose the question of whether the whole of what we mean by the Rule of Law can he got across to all those embraced by the term 'the Common Man1- If this is not possible, then it may be necessary to convey to the non-lawyer the cen tral ideas that run through the Rule of Law. Yfhat these central ideas are would then need to be identified. It should be pointed out that, where the public understands the process of the law and holds the law in great respect, it would be easier to create an atmosphere favourable to the Rule of Lav/. It is therefore necessary that the Commission should address its mind to the problem of seeing that the process of the law is well understood and that a healthy respect of the legal method exists. On such fertile soil the concept of the Rule of Law would find growth all the easier. To do this it seems desirable that the lawyer and the non-lav/yer should come to know each other better; and it would be necessary for the latter to know enough to appreciate the former's role in society. Greater understanding of the lawyer and his work appears to be linked with the question of 'popular ising1 the Rule of Law. It follows that anything that brings the officers of the law into disre pute, whether they be counsel, judges, or court officials, should be avoided. Corruption within a legal system cannot be tolerated. Not only must the system be free of corruption, it must not be tainted by the slightest suspicion. To achieve this, institutional devices will be necessary. The devices necessary will no doubt vary from country to country, but they must include constitutional methods to ensure the independence of the Judiciary and the existence of a fearless Bar. Most countries today have systems which have helped to eliminate corruption and bias from the Judiciary, But minor court officials are reputedly not free from charges of corruption. More often than not it is in our courts and tribunals that the common man comes into contact for the first time with the application of the Rule of Law, It is important therefore to ensure that at this point of contact the common man is made to realise the value and purpose of the Rule of Law.. It happens quite often that the common man, although satisfied with the actual •vindication of his legal rights through the. judicial process, is still dissatisfied with the procedure for vindicating them. Apart from malpractice, the biggest single cause of this dissatisfaction appears to be the lawfe delays. Some of these delays are avoidable, some are necessary. When the delay is unavoidable, it is neceasary to keep the public informed of the reasons for such delay e.g. when decree absolute is delayed. Avoidable delays oughthot however to be allowed to take place. The creation of a legal process through which legal rights may be speedily vindicated must be a part of the ideal of the Rule of Law and machinery must be created to keep rules of procedure constantly under review. Rules which have outlived their usefulness should be abolished. National Sec tions of the International Commission of Jurists may well find it useful to study and report upon various aspects of the law of procedure. In some minor courts (e.g. Rural Courts in Ceylon) and in certain tribunals lawyers are excluded. In some even the judges are non-lawyers. In some coun tries, large nroas where the-acfcju&icative process is involved are handled entirely by non-lawyers. Quite often, the argument employed for this is that the exclu sion of lar/ers is necessary for ensuring speedy and substantial justice. In son's o£ these tribunals the work disposed of is often more than that in an - 3 - ordinary court. Consequently, a large number of members of the public are re quired to attend these courts. The absence of lawyers often results in a nega tion of the Rule of Law, particularly in matters of procedure. It is imperative that steps be taken to remedy this situation, for which purpose a proper appre ciation of the role a lawyer can play in these courts is required. This paper has so far been concerned with the problems that face the Rule of Law in the courts and other tribunals. The task of popularising the Rule of Law is not restricted to this narrov/ compass. The Rule of Law must be under stood - and explained to the common man outside the court-room sphere. The principal area of this operation will have to be in the field of education. Activities in the schools and other places of learning must be stepped up. It is perhaps not appropriate to suggest that this is in itself a proper subject for a school curriculum. But it may be introduced in many indirect ways. For instance, in Ceylon, a part of the course on Civics, a very popular subject among students in the Arts stream, may properly concern itself with the Rule of Law. Civics, which is a study of various governmental activities, while paying careful attention to the legislative and executive branches of govern ment, often passes cursorily over the judicial sphere. How courts work and what the law is about, should form part of a school course and this under-, standing will help the average student to appreciate what our concept of the Rule of Lew seeks to achieve. The difference between the methods of tyranny and those of the Rule of Law would then be conveyed sufficiently early to make a lasting impression.

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